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N!NJA writes with an excerpt from a post by Florian Mueller: "Barnes & Noble's primary line of defense against Microsoft's allegations of patent infringement by the bookseller's Android-based devices has collapsed in its entirety. An Administrative Law Judge at the ITC today granted a Microsoft motion to dismiss, even ahead of the evidentiary trial that will start next Monday (February 6), Barnes & Noble's 'patent misuse' defense against Microsoft. [...] Prior to the ALJ, the ITC staff — or more precisely, the Office of Unfair Import Investigations (OUII), which participates in many investigations as a third party representing the public interest — already supported Microsoft's motion all the way. The OUII basically concluded that even if all of what Barnes & Noble said about Microsoft's use of patents against Android was accurate, it would fall far short of the legal requirements for a patent misuse defense."

Good thing Mr Gates decided to start investing in DC Lobbying infrastructure after the first round of anti-trust charges. Sure it costs millions of dollars a year, but think of all the abuses you can muster!!!

Oh look, a selective quotation! We can play this game too! Florian, is that you?

"So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations, in addition, can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Witness the neverliving, undying horror which is SCO v. Novell [groklaw.net]. Still, there are moments that you can persuasively say "Ok, it's over", even if the vanquished is still struggling. Like:

20-Nov-2008: Final Judgment in favor of Novell, Inc., SCO Group and also against Novell, Inc., SCO Group. Case Closed. Magistrate Judge Brooke C. Wells no longer assigned to case. See Judgment for details. Signed by Judge Dale A. Kimball on 20-Nov-2008.

This particular setback* for B&N is pretty harsh, and I (though not a lawyer) don't know of any way to undo the damage.

Mueller has a tendency to go all "end-of-the-world-as-we-know-it" in his pronouncements, but the (accurate) retelling of this news is still interesting and useful (once you dig out the mere facts).

It would have been nice if Groklaw could have covered this development in and of itself, rather than as a pointless rebuttal to Mueller. Really, do we have to concede initiative to this guy? Can't we just report the facts and ignore him?

*Ok, maybe I play World of Warcraft too much, but I think I just read that in the voice of Kael'thas [wowwiki.com]. "Merely a setback", indeed.

I haven't recently seen an ITC review of any ALJ order comparable to this one (findings of violations are a different story).

For the benefit of those Slashdotters who simply crave analogies, it's like you're asked if some part of code has a bug in it. So you run tests against it and make an initial determination that it doesn't have bugs. Then later someone provides their own tests and asks for a review and your initial determination is overturned. On the other hand, if you can see that the particular piece of code is never actually executed then an initial determi

Well, other than the part where you can't actually read the order yet...

Note also that a dismissal of an "Affirmative Defense" isn't actually the end of the world - it just means that you'll have to actually go to Trial for real, rather than saying "Nyah, nyah, the law says that since we have this affirmative defense, you lose!"....

Mueller is generally a very one-sided reporter. He is VERY one-sided when it comes to coverage of Android, i.e. hates it, and ALWAYs in favor of anything Apple.

IANAL - and have no real idea what the real net effect is on the lawsuit. I'll wait till there is some coverage on Groklaw to look for a real explanation of what the implications are. Granted - Groklaw is heavily pro anything FOSS, consequently it serves as a decent counter-point to Mueller.

To be fair his bias isn't towards Apple, it's towards Microsoft, but Android is indeed his primary target as Microsoft apparently sees this as a bigger threat than iOS for whatever reason.

If it's an Apple vs. Google story you can guarantee he'll side with Apple, but you'll note if it's something that involves Microsoft, Apple and Google, or just Microsoft and Apple then the bias will be towards Microsoft rather than Apple.

I wouldn't be surprised if Mueller is linked to the multi-account pro-MS shill that po

The OUII basically concluded that even if all of what Barnes & Noble said about Microsoft's use of patents against Android was accurate, it would fall far short of the legal requirements for a patent misuse defense. For example, Barnes & Noble claimed that Microsoft asked for excessively high patent license fees, but the OUII quoted passages from U.S. law (statutory as well as case law) that clearly said that patent law doesn't require a patent holder to grant a license on any terms.

So, basically, it was game over before it got started.

It's not about creation anymore.

It's all about owning segments of possible creation.

And those have been mostly divvied up, given the ridiculously broad areas of thought and ideas that we allow to be patented.

The only part you're missing is that B&N was claiming that Microsoft was misusing their (trivial/invalid) patents to maintain a monopoly on the desktop. Without reading what Mueller wrote (and mostly just reading Groklaw's take, including comments there), this ruling appears to be that the ITC won't continue to consider the patent misuse argument... for now. However, it is an initial ruling and not all of the information has been provided (and it looks like the majority of B&N's patent misuse defens

To be fair though, all of this is the result of google taking shortcuts in developing android instead of building their own product. No wonder they were able to create an os so quickly, then turn around and sell it for free.

You've got to be kidding. That sort of thinking not only undermines Google's effort of bringing a good product to market and making it so successful, it also undermines the very foundations of the OSS ideology.

The problem here isn't on Google's part, it's on the parts of the patent system (for allowing patents of highly questionable quality to be used in this way) and Microsoft (for being anti-competitive asshats as usual).

The qualification here is having a bit of common sense. The system is broken. Let's not dilute that reality by keeping our thinking so inside the box that we can't see the fundamental failure of the patent system to promote innovation in the modern era.

When the patents they are using to hold something for ransom are trivial patents that any programmer would come up with the same solution if given the same problem, with lots of prior art, then yes. They are being a patent troll in this instance.

They applied for the patent,or bought the company that originally owned the patent' it was researched by the patent office and patent was granted. You calling the patent trivial is just being a troll. They have followed what the legal system has provided. They broke no laws. Isnt the MS hating getting a little old?

No one said they broke any laws. And it's not just MS hate, I hate on pretty much every company that uses their patents offensively.

The patent isn't trivial because I call it that, the patent is trivial because an ordinary software engineer would find the solution to be obvious. These patents, along with many others, should never have been granted. It's more of an example why software patents are just a horrible idea. The implementation is not patented, the idea is, which is contrary to the purpose of paten

I'm not going to change your mind no matter what. There are millions of products that we all could say OMFG why didn't i think of that. Well MS did that and patented it legally . They are within there legal rights to sue anyone that uses their patented teck wither you or i like it or not

You're arguing a complete straw man. I never said they weren't within their rights. I never said that what they are doing is illegal, nor even hinted at it.

I'm also not talking about things that are "OMFG why didn't I think of that." I'm talking about things that when that particular problem was put to me I went "So, why don't you just do this?" after thinking about it for roughly 5 or 10 minutes. Or problems that result in my reaction of "you mean they don't just do X? Why the hell not?" And then found out

I've seen the patents and they're a joke. They've been discussed here before [slashdot.org]. What are my qualifications? Like many others here on/. I'm "in the trenches" so as far as I'm concerned I'm more qualified to have an opinion than the lawyers and judges that YOU'd consider "qualified" to make that kinda statement.

Rather, Microsoft is a medieval style guild, and they collect dues from any who would practice their trade. If you don't pay, they come and burn down our house.

And it goes way, way deeper than any "shortcuts". To put it another way, if we were talking about mechanical and structural engineering, not only would MS hold the rights to be the sole bridge builders in the land, but the very concept of a device or structure to facilitate the crossing of a body of water would be theirs. They'd own the rights to cables, supports, bolts; not only to steel but to alloys in general.

With our technology, there is nothing that doesn't stand on the shoulders of those who have gone before at this point. We should still be in a rapid development cycle, spinning upward. Instead, we squabble over who gets to build anything at all.

And eventually, we're going to absolutely destroy American technological innovation. First, by making it impossible for most everyone but the established players to build anything at all. And by doing so, we will lay the groundwork for the first other nation to surpass us to absolutely ensure that we are subject to the very idiotic laws that we are using to choke our own innovation.

More specifically junk patents help the rich screw the poor. The 99% pay the cost of those patents while the 1% rake in the profits and absolutely nothing to do with innovation just straight up greed. The current administration is quite comfortable with greed. That any government can look at these patents in question and not see the scammy pieces of shit they are is as corrupt as the regulations they created to give the force.

The Microsoft-created features protected by the patents infringed by the Nook and Nook Color tablet are core to the user experience. For example, the patents we asserted today protect innovations that:
* Give people easy ways to navigate through information provided by their device apps via a separate control window with tabs;
* Enable display of a webpage’s content before the background image is received, allowing users to interact with the page faster;
* Allow apps to superimpose download status on top of the downloading content;
* Permit users to easily select text in a document and adjust that selection; and
* Provide users the ability to annotate text without changing the underlying document.

Microsoft obviously thinks this is pretty advanced stuff. Adjust a text selection? Annotate a document? Tabbed controls? Woah. No wonder they want $30 per device (more than the cost of licensing WP7!).

Android also faces serious patent issues from Apple. After Apple demolishes Samsung, Motorola and HTC they may try to squash the fringe players like B&N.Unlike Apple, MS has at least offered reasonable royalty terms to Android manufacturers. So spread your hatred around a little.

then there's the Nook is you're too stupid to realize it's more expensive than the Kindle.

The Nook touch is $99 as is the Kindle. The Kindle is only $99 now because it's the version that shows you ads. Without ads it was still $139. They don't even seem to be selling it without ads anymore.

And the Nook can? It only reads books from the Barnes & Noble store, they removed the ability to "side load" stuff a while ago.

It comes with a usb cable. Plug it in and drag the file to it.

Besides, the defacto standard is MOBI, to the extent that Apple had to create a tool to make books in whatever format they use.

From wikipedia:

The EPUB format is rapidly gaining popularity and as of 2011 is the most widely supported vendor-independent XML-based e-book format.

Isn't the Kindle the only ereader that doesn't support it? Apple choosing a proprietary format isn't surprising. Not sure why you think that makes the format superior. Apple makes a lot of choice

You're full of it. I have a Nook Color and an iPad2, and the Nook is way better for *reading*. The iPad is OK, but after a while it is much more pleasant to hold a device that is the size of an ordinary book, rather than one with the dimensions of a thin textbook. Also, the Nook has a higher pixel density, so the the text looks noticeably more clear.

Also, it is very easy to put epub files from e.g. Project Gutenberg onto the Nook. You just plug the usb cord into any desktop or laptop computer, and it ap

Repeat after me; "The iPad is not an ereader...". It is a tablet that can handle books (just like all the various Android tablets, or old Windows tablets), not an ereader. Ereaders aim at a completely different segment of the market. I have both, a tablet (with Kindle and Nook software), and a dedicated ereader (a Nook). I use one for reading books, and the other for wasting time on Youtube...

This is slick PR, but completely inaccurate. B&N's tablet, their service, their brick-and-morter presence are all major advantages of "I own the one-click ordering" Amazon. Apple is a technology company, so they are not B&N competitors. The Nook tablet is awesome, BTW, but they should really back off on the lock-down if they want to sell more.

B&N also is NOT a publishing company - they are a book retailer. There is no need or reason for them to "provide tools for publishin

I tried both before getting one ( a Nook), and they were around 100% equivalent. There were some things the Kindle could do better (better battery, but the Nook's was good enough not to matter much to me, slightly better contrast, free intrusive ads), and some things the Nook could do better. It boiled down to a choice based on preference, not hardware or software. I picked the Nook because I like open standards (epub, and Overdrive), and I'd rather help B&N stay in business than help Amazon t

I really wish 'obvious' were a common defense in patent fights, because so many patents ARE obvious.

Obviousness is not a court defense. The patent office itself is supposed to reject obvious patents in the first place instead of issuing them (they're dicks, or stupid).

Once a patent is granted, it's too late. The best you can do is try to force the patent office to reassess the patent (Great, have the cockbites who granted it double check their own work) and hope that they reject it correctly the second time around.

IANAL, but I'm pretty sure that arguing that a patent is invalid in court is a defence against patent infringement. See here [groklaw.net] for an example where Red Hat showed prior art during trial and got a patent troll's patents invalidated. Similarly in this case, even if B&N fail to show patent misuse, they have a ton of prior art, and arguments that the patents are trivial and don't actually properly disclose the "invention". See here [groklaw.net].

It was in the Barnes and Noble court filing, they said MS wanted more money per device for "Linux patent protection" than they charge to license WP7. I think the exact amounts got redacted in the court filings though.

Well I can't speak for the OP - and I haven't heard the $30 figure before. If it's true, it's about double the per-device cost of WP7, which is about $15 (for HTC anyway). Others pay more - estimates are between $20 and $30, and ZTE (in the UK) has revealed their WP7 license is between $23 and $30.

What should strike any justice-minded person as repugnant is the entire idea that Microsoft, through legal coercion, market dominance and government sanction, can make so much money on something that they did no

USPTO *used* to set a pretty high bar for obvious improvments, modifications and "innovations", using the notion that "one practiced in the arts..." (i.e. experts in the field), could, would and have easily arrived at the same solutions, tricks and modifications. Some of these "protected innovations" are obviously ridiculous and trivial to "one practiced in the arts...", like:
* Provide users the ability to annotate text without changing the underlying document.... please... what does yellow highlighter d

Your example of using a yellow highlighter DOES change the document, as does scribbling on it. Making a copy and marking that up is still marking up right in the full document. I'm not familiar enough with Acrobat's annotations to know if it makes them in a separate file... if so, that could well be prior art.

I'm not familiar with the exact patent, nor with B&N's annotations, but I am intimately familiar with Kindle annotations. They'r

This is really just a digital version of writing on the document. Storing it in a separate file is an obvious way of implementing this feature on a digital device. Modifying the original file is another way of implementing it but these are the types of design decisions software developers deal with on a daily basis and giving patents that span multiple decades for them is absurd.

"Your example of using a yellow highlighter DOES change the document, as does scribbling on it. Making a copy and marking that up is still marking up right in the full document. I'm not familiar enough with Acrobat's annotations to know if it makes them in a separate file... if so, that could well be prior art."

OK, except that I wasn't trying to make arguments about prior art. Instead I was talking about "one practiced in the arts", i.e. "innovations" that are so obvious that they should be ruled as NON-in

Neither does any other license stop third parties. Like they say, anyone can bring suit at anytime for any reason. Whether it has merit is a different story tho. The GPL absolutely *does* forbid distribution if any part of the GPL's work is encumbered however.

Fact is that software systems other than Microsoft's run most devices available. BusyBox rules the roost, Android has a huge portable devices market and the rest of the know universe belongs to Apple with a smattering of odd ball stuff like Symbian. The United States patent office has been subverted by companies like Microsoft and the rest of the world is now becoming the source for real product innovation.Plain and simple the whole concept of an economy based more on IP than real products has backfired. The statements coming out of Washington about how IP has to be protected at all cost and how American "innovations" are more valuable than real products has led to this sad state of affairs.The rest of the world could care less, America is being miss lead by corporate junkies like Steve Ballmer and the economy is going to go down the tank because of corporations like Microsoft and the failure and shameful decline of real industrial innovation, education and leadership within the United States.

Funny you should say that, since in this case, the Nook is a carbon-copy of the Kindle (for the regular versions) and Kindle Fire (for the "tablet" versions). It's not like Barnes & Noble were doing any innovating here in any case, they're just copying what other people are doing.

Now, granted, they're being sued by a third party who didn't innovate any of the stuff that Barnes & Noble copied, which is kind of ironic. But it's not like the Nook is some innovative new device. It's a (poor) rip-off of the Kindle in a desperate attempt by an old brick-and-mortar bookstore to pretend that they're still relevant in the 21st century.

(as AC cause you are)um.... didn't the Nook come out BEFORE the kindle fire?... who is copying whom?

I think I'll wait and see what Groklaw says about this - since it is now run by an actual IP lawyer (Mark Webbink of RedHat), I think they are *very* much qualified, far moreso than Mr. Mueller. Not that PJ was un-qualified at all - her research as a paralegal is world-class. And since she too works in the legal industry I'm sure she is also far more qualified than Mr. Mueller.

"I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements. "

This won't hurt B&N that much. Mainly they already have letters rogatory and subpoenas pending against MOSAID and Steven Elop. Looks like they're gonna have to speak up and tell what the deal is after all.

Seriously; we need a way to keep track of the personal finances of everyone ruling against FOSS with no real, valid reason given. From junior patent examiners to international jurists; are they and their families living beyond their means with no honest, visible means of support.

I'm seeing a couple of articles about an initial determination by the ITC against Barnes & Noble on its patent misuse defense, and there's quite a lot of spin on the ball, thanks to the usual suspects. They are reading a lot into a title of a sealed document. I see many misstatements.

So I'll explain a little about the process, so you can understand it. For one thing, the title of the sealed ITC initial determination is called an *initial* determination for a reason. It means it isn't final. The final one comes later. Initial determinations can be reviewed by the full ITC if the defendant petitions for review and even one Commissioner says yes.

Litigation isn't like football. It is rarely suddenly over.

Most importantly, the materials and depositions Barnes & Noble is seeking in discovery from Nokia and MOSAID have not yet arrived, although the ITC did grant Barnes & Noble's motion to ask Finland and Canada to provide them, and that's still ongoing, so there is likely more to go, even at the ITC. So with those materials not yet in hand, Microsoft's statement today that this means the defense is meritless is... well... to put it kindly premature. I mean, if a determination is made without the complete record being available, what does it mean?